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Criminal Law Keyed to Gershowitz
State v. Colbath
Citation:130 N.H. 316, 540 A.2d 1212.
On June 28, 1985, the defendant wen to the Smokey Lantern tavern and started to talk to the female complainant. There was evidence that she directed sexually provocative attention toward several men in the bar, with whom she associated during the ensuing afternoon, the defendant among them. The defendant testified that he felt her breasts and bottom and that she had been rubbing his crotch. The two of them eventually left the tavern and went to the defendant’s trailer. It is undisputed that sexual intercourse followed; forcible according to the complainant, consensual according to the defendant.
During trial, the judge instructed the jury that evidence of the complainant’s behavior with other men was irrelevant. The judge did so due to consensual sexual activity being statutorily inadmissible due to the rape shield law. He was convicted of sexual assault. He appealed, arguing that the trial judge incorrectly barred the jury from considering evidence of the complainant‘s public behavior with men other than the defendant in the hours preceding the incident.
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